In a 2-1 decision, a panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled that twice-convicted murderer Richard W. Cooey, 39, waited too long to question the drugs and procedures Ohio has used 24 times since it resumed carrying out the death penalty in 1999.

At the latest, Cooey should have filed his challenge within two years after Ohio retired the electric chair in 2001, making lethal injection the state's sole method of execution, the court said. Inmates could previously choose between the two.

Cooey, of Summit County, was convicted in the 1986 kidnappings, rapes, and murders of two University of Akron students.

Greg Meyers, chief counsel with the Ohio Public Defender's office, said he will seek an immediate stay of the decision as he asks for a rehearing before the entire 6th Circuit bench.

Among its arguments, the suit contends Ohio's three-drug protocol could leave an inmate conscious while appearing to be asleep, causing him to silently suffer excruciating pain as the drugs paralyzed his body and induced cardiac arrest.

Yesterday's decision is also expected to affect seven of the eight inmates who later joined Cooey's lawsuit as plaintiffs.

Among the seven who also have time-limit problems are Toledo native John Spirko, convicted in the 1984 kidnapping and murder of a Van Wert County postmaster, and Johnnie Bastion, convicted in the 1994 robbery slaying of a Toledo merchant.

Spirko's execution is set for April 17. Bastion has no execution date.

"Ohio did not adopt lethal injection until 1993, or make it the exhaustive method of execution until 2001, so the accrual date must be adjusted because Cooey obviously could not have discovered the 'injury' until one of those two dates," wrote Senior Judge Richard F. Suhrheinrich.

"We need not pinpoint the accrual date in this case, however, because even under the later date, 2001, Cooey's claim exceeds the two-year statute of limitations deadline because his claim was not filed until Dec. 8, 2004," he wrote. He was joined in the majority by Senior Judge Eugene E. Siler, Jr.

Judge Ronald Lee Gilman dissented.

"Timeliness is important, but justice is more important," he wrote. "Although the common saying is 'justice delayed is justice denied,' there are situations in which the adage does not hold true. I believe that this is one of those situations."

Nicole Diar, a Lorain County woman convicted of killing her 4-year-old son, is the sole plaintiff in the Cooey case unaffected by yesterday's ruling on the statute of limitations. Her challenge could continue.

"The question is not whether there should be some level of pain associated with the lethal injection process," said James Canepa, chief of the Ohio Attorney General's capital crime unit.

"It's a question of whether there is an unconstitutionally inappropriate application of the process," he said. "Clearly anything associated with a needle and injection is going to cause some pain."

Mr. Meyers, however, hopes for a chance to argue that the current process at least creates the chance that an inmate will suffer cruel and unusual punishment.

"The general public may look at this as being a too-easy way of putting a guy to sleep the way we put our house pets to sleep," he said. "But the veterinarians' association forbade in 2001 the use of these three drugs to euthanize house pets, and it did so because of the same concern, that we were torturing animals to death."

Judge Gilman noted lethal-injection procedures are subject to change at any time, as evidenced by the Department of Rehabilitation and Correction's response following problems with the May 2, 2006, execution of Toledo native Joseph Clark.

The execution team had trouble finding usable veins through which the drugs could flow.

An execution that normally lasts about 10 minutes took nearly 90 minutes with witnesses briefly hearing Clark moaning and groaning as the team worked to correct the problem.

The state later changed some of its procedures, but it did not change the drugs or dosages involved.

Ohio's next execution is set for March 20. Kenneth Biros, one of the plaintiffs in the Cooey lawsuit, was convicted in the 1991 murder and dismemberment of a 22-year-old woman in Trumbull County.

<br /><br />If there must be trouble, let it be in my day, that my child may have peace. -Thomas Paine<br /><br />My reason for supporting capital punishment: My cousin 16 yr. old Amanda Greenwell was murdered in March of 2004 at the hands of serial killer Jeremy Bryan Jones.